Taking migrant from a Jack in the Box to a nearby van doesn’t ‘encourage’ illegal immigration

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A law against “encouraging or inducing” someone to remain in the United States illegally can be broken in lots of ways. But escorting an undocumented immigrant from a Jack in the Box to a nearby van — both on this side of the border — isn’t one of them.

That’s the word from a federal appeals court that overturned a California man’s conviction last week. Jorge Humberto Thum (pronounced toom) had already served a federal prison sentence for transporting an illegal immigrant and was on supervised release, the federal equivalent of parole, when he was arrested in November 2012 near the San Ysidro port of entry south of San Diego.

Federal agents said they were following someone who had gone through the port of entry that day with an apparently false ID card. The man went to a nearby Jack in the Box, where Thum met him and took him across the street to one of the vans that was carrying passengers to Los Angeles. When both men tried to enter the van, they were arrested.

Thum told the agents that he was, in fact, in touch with a smuggler who planned to transport the immigrant to Northern California, the court said.
Thum’s lawyer said the smuggler wasn’t located, but a federal judge found Thum guilty of “encouraging or inducing” the illegal migrant to reside in the United States, and added two years to his supervised-release period.

Thum might also have been convicted of illegal transportation. But prosecutors withdrew that charge, and his conviction was thrown out Friday by the Ninth U.S. Circuit Court of Appeals in San Francisco, which said arranging a ride from one place in the U.S. to another isn’t the same as encouraging someone to live here.

At most, the evidence shows that “Thum attempted to help an illegal alien travel within the United States,” Judge Milan Smith said in the 3-0 ruling. “Encouraging an illegal alien to reside in the United States must mean something more than merely transporting such an alien within this country.”

In these situations, “the federal government has a huge stack of charges they can file,” said Thum’s court-appointed attorney, Devin Burstein. “But you can’t just choose any charge.”